Is the Endangered Species Act Constitutional? How the Utah Prairie Dog Case May Impact California

• Publication year: 2015
• Author: by Eric Biber and Elise O'Dea

Is the Endangered Species Act Constitutional? How the Utah Prairie Dog Case May Impact California

by Eric Biber^* and Elise O'Dea^**

INTRODUCTION: SIX COURTS OF APPEALS HAVE UPHELD THE CONSTITUTIONALITY OF THE ESA

The federal Endangered Species Act (ESA) is well-known to California environmental lawyers as one of the most important environmental laws—federal or state—on the books. The ESA has broad regulatory reach—everything from water diversions to greenhouse gas emissions to land development could theoretically come within the scope of the law. It also includes potentially stringent regulatory standards—for instance, ESA section 7, which prohibits federal actions that "jeopardize" the existence of species listed for protection under the Act, has only one convoluted and little-used exemption process.¹ And, given the number of species in California listed for protection under the Act (at last count, 321 species of plants and animals²), there is great potential for the ESA to be applied to private and public actors.

But as with all federal laws, the ESA must be grounded in federal constitutional authority that justifies congressional action. When the ESA was enacted in the early 1970s, courts, legislators, and legal scholars assumed that Congress had broad authority to regulate environmental issues under the Commerce Clause, which states that Congress has the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."³ Beginning with the New Deal era of the 1930s, there was a broad consensus that Congress had wide latitude to regulate even individually small activities that occurred within one state because of the possible impacts of those activities on interstate commerce.⁴

However, in the 1990s, the Supreme Court took a new approach to its Commerce Clause jurisprudence. In a series of cases, the Court imposed new limits on Congress's power to regulate pursuant to the Clause, striking down a federal law criminalizing possession of guns near schools⁵ and a federal law establishing a civil remedy for victims of violence against women.⁶

After these initial cases, a number of federal environmental statutes appeared vulnerable to challenges on Commerce Clause grounds. Many of these laws regulate activities such as air or water pollution, or disposal of hazardous wastes, regardless of a connection to interstate commerce or to interstate resources such as navigable waterways. A leading legal scholar argued that federal environmental law was best (and perhaps only) justified as addressing environmental pollution that crossed state boundaries.⁷

To date, the Supreme Court has stopped short of holding that federal environmental laws exceed the power of Congress under the Commerce Clause. The closest it came to doing so was in a series of cases narrowly interpreting section 404 of the Clean Water Act, which regulates the disposal of dredged or fill materials into wetlands.⁸ Noting concerns about the constitutional authority of Congress to regulate broadly in this area, the Court interpreted the law as inapplicable to the disposal of dredged and fill materials into wetlands isolated from navigable waterways, and more broadly required a showing of a "significant nexus" between wetlands and navigable waterways in order to justify federal regulatory power.⁹

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Given the wide regulatory scope and power vested in the government by the ESA, it is no surprise that the ESA has been the subject of numerous constitutional challenges. There have now been at least six cases heard by the federal courts of appeals in which parties have argued that an application of the ESA exceeds Congress's Commerce Clause powers.¹⁰ In each of these cases, the circuit court has rejected such claims, albeit for different reasons. Yet, a conservative public interest organization, Pacific Legal Foundation (PLF), which has participated in previous Commerce Clause challenges to the ESA,¹¹ has mounted another attempt to limit the scope of the ESA—this time in Utah. PLF succeeded in convincing District Court Judge Dee Benson that the ESA regulation of Utah prairie dogs on nonfederal land was unconstitutional, and the case now goes to the Tenth Circuit.

PEOPLE FOR THE ETHICAL TREATMENT OF PROPERTY OWNERS V. FWS

The species at issue in People for the Ethical Treatment of Property Owners v. U. S. Fish and Wildlife Service (PETPO) is the Utah prairie dog (Cynomys parvidens)¹² The Utah prairie dog is the westernmost species of prairie dogs and is currently found in southwestern Utah.¹³ It is listed as a threatened species under the ESA.¹⁴

One of the primary protections that apply to most species listed under the ESA is contained in section 9 of the Act, which prohibits "take" of individual members of listed species by anyone—a private party, the federal government, or state and local governments.¹⁵ "Take" is broadly defined to include a wide range of activities, including "harm."¹⁶ The federal regulatory agency responsible for implementing the ESA as applied to terrestrial animals, the U.S. Fish and Wildlife Service (FWS), has promulgated a regulation defining "harm" to include significant habitat modification that "actually kills or injures" individual members of a listed species.¹⁷ Private and nonfederal public entities can obtain a permit under section 10 of the Act exempting them from section 9 take liability if they first submit a "habitat conservation plan" to FWS for its approval.¹⁸ Federal agencies may receive an exemption from section 9 if their actions are determined not to violate section 7 of the ESA.¹⁹

While species listed as endangered receive the full protections of section 9, species listed as threatened (in theory, a status that is less dire than endangered) can receive less protection under section 9 if the responsible federal regulatory agency chooses to provide less protection.²⁰ The agency can choose to completely exempt the threatened species from "take" prohibitions, provide full protection, or something in-between. With respect to the Utah prairie dog, FWS has historically provided somewhat less take protection, authorizing a range of activities by local landowners to harm prairie dogs, including extermination or removal of prairie dogs from private property where they interfere with agricultural activities.²¹

However, these exemptions are not enough for a number of property owners in southwestern Utah, who claim that prairie dogs interfere not only with agricultural activities, but also with housing and commercial development, airport operations, and graves, due to their burrowing.²² PLF represents these landowners in their challenge to the ESA as applied to their activities.²³

Plaintiff's basic argument is that because the Utah prairie dog is currently found only within the borders of one state—Utah—and because take of prairie dogs is not a commercial activity, Congress has no authority under the Commerce Clause to regulate the take of Utah prairie dogs on nonfederal land.²⁴ As noted earlier, this is not the first time similar claims have been made. For example, in San Luis & Delta-Mendota Water Authority v. Salazar, agricultural interests in California argued that ESA regulation of water diversions to protect the delta smelt exceeded Congress's Commerce Clause powers because the smelt is present in only California.²⁵ Developers and local government units in southern California made similar arguments about ESA regulation of land development to protect the Delhi Sands Flower-Loving Fly, which is found in only a few locations in southern California.²⁶ The Ninth and D.C. Circuits, respectively, rejected both of these claims.²⁷ The plaintiff in PETPO hopes for a different result in the Tenth Circuit.

CONSTITUTIONAL CHALLENGES TO THE ESA

A common theme among cases challenging the constitutional authority of the ESA is that they focus on ESA protection for a species present in a single state.²⁸ Where protected species cross state lines—such as the grey wolf, or bald eagles—the Commerce Clause justification for congressional action is much stronger. After all, by definition, impacts on an interstate species in one state have impacts on the status and viability of that species in another state. Thus, ESA protection of interstate species can more plausibly be framed as an effort to address interstate environmental spillovers. In addition, to the extent that an interstate species has some economic utility—for instance, bird watchers seeking to observe bald eagles—a much stronger case can be made that protecting the interstate species affects interstate commerce.²⁹

The fact that these challenges are limited to species present in only one state does not mean they are not significant—whether for the ESA in general, or for its application in California. Over 400 ESA-listed species are present in only one state, Hawaii,³⁰ and over 250 ESA-listed species are present only in California.³¹ This means that roughly 10 percent of the total number of ESA-listed species inhabit only our state.³² Thus, if the ESA did not generally apply to intrastate species, this might greatly affect the ESA's regulatory scope within California.

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In resolving Commerce Clause challenges to the ESA, the courts of appeals have sought to apply the framework that the Supreme Court has developed in its leading Commerce Clause cases from the past twenty years.³³ The Court has identified three different ways in which Congress may properly exercise its powers under the Commerce Clause, finding that Congress may regulate:

1. the "use of the channels of interstate commerce"
2. the "instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities," and
3. "those activities having a substantial relation to interstate commerce . . . i.e., those activities that substantially affect interstate commerce."³⁴

In general, arguments supporting the constitutionality of the ESA...